Court Rulings Raise Questions of What Constitutes Incompetency and How is it Determined

Two recent high court rulings have raised questions of whether death-row prisoners are sufficiently mentally impaired to be deemed incompetent to be executed and who gets to make that determination. On November 7, the Arkansas Supreme Court issued anorder staying the execution of death-row prisoner Jack Greene (pictured, left) to resolve whether that state's mechanism to determine competency—giving the director of the Arkansas Department of Correction ("ADC") sole discretion to make the decision—violates due process. One day earlier, a unanimous United States Supreme Court permitted the execution of Alabama death-row prisoner, Vernon Madison (pictured, right), to go forward—despite evidence that strokes have left him legally blind, incontinent, unable to walk independently, and with no memory of the offense for which he was sentenced to death—saying that the Alabama Supreme Court's ruling that Madison had a rational understanding of his execution was not contrary to or an unreasonable application of clearly established federal constitutional law. Greene's lawyers had argued to the Arkansas Supreme Court that Arkansas had violated his right to due process when corrections director Wendy Kelley ruled him competent to be executed without having conducted any independent mental health evaluation or providing Greene's lawyers any opportunity to contest her determination. According to court filings, Greene is severely mentally ill and psychotic, delusionally believes that the ADC has destroyed his central nervous system, engages in "extreme physical contortions and self-mutilations" to attempt to combat the pain, and thinks the state and his lawyers are colluding to execute him to prevent disclosure of the injuries he believes have been inflicted by the state. In his Last Will and Testament, signed on November 1, he asked that his head be surgically removed after the execution and examined by a television reality show doctor in an effort to prove that he has been subjected to "percussion concussion brain injuries . . . inflicted by the Arkansas Department of Corrections since July 5, 2004." His lawyers have been seeking a court hearing on Greene's mental status to determine his competency. In ther Alabama case, the Supreme Court reversed a decision of the U.S. Court of Appeals for the 11th Circuit that had found Madison incompetent to be executed. The federal appeals court had rejected the state court's finding that Madison was aware of the reasons for his impending execution, saying that because of his stroke-induced "memory loss, difficulty communicating, and profound disorientation and confusion," he lacked an understanding of the "connection between his crime and his execution." The Supreme Court reversed the lower court's decision, holding that there was no clearly established law concerning when "a prisoner is incompetent to be executed because of a failure to remember his commission of the crime," as "distinct from a failure to rationally comprehend the concepts of crime and punishment as applied in his case." Prosecutors in Arkansas said that they will not seek rehearing of the decision in Greene's case, and state attorneys in Alabama have not yet asked for an execution date for Madison.